June 17, 2008
Columbia Gorge Dock Creates Tangle
By Michael Milstein, The Oregonian, Portland, Ore.
Jun. 15--ARLINGTON -- The 40 or so steel pilings poking from the Columbia River were supposed to be a bridge to the future for eastern Oregon's Gilliam County and this river port town.They are footings for a $3 million barge dock. It's planned to keep Arlington competitive in a growth industry and lifeline for rural Oregon and Washington: importing garbage from Portland, Seattle and perhaps eventually as far away as Hawaii.
But the U.S. Army Corps of Engineers now says the Port of Arlington probably will have to tear down the dock, paid for with local and state lottery money.
The corps admits to mistakenly approving construction of the dock in a Native American fishing area so firmly established it's noted in the records of Lewis and Clark. The site's history means it's protected by treaty and cannot be altered without an act of Congress, the corps now says.
The Port spent more than $2 million building about 70 percent of the project, including a bridge over railroad tracks to reach the dock. The corps suspended the work last year and, two months ago, revoked the permit altogether.
That has left Arlington to challenge the Native American fishing rights granted by treaty in 1855. But the Confederated Tribes of the Umatilla Indian Reservation have drawn the line. They have already lost so many of their fishing grounds on the Columbia, they say, there's no way they can give up another. The issue, which may well end up in federal court, could test the strength and extent of tribal fishing rights on the Columbia.
Tribal fishermen cannot go somewhere else, said Eric Quaempts, natural resources director for the Confederated Tribes. The current, contour and depth of the water where Willow Creek meets the Columbia make it ideal. The whole tribe uses salmon caught there for ceremonial and subsistence needs.
"One need only look at the Columbia River today to see how much of the river has been modified, dammed and otherwise made inaccessible to fishing and the exercise of treaty rights to understand what the loss of one more site means," Umatilla tribal Chairman Antone Minthorn wrote to the Corps of Engineers, Port of Arlington and the county.
"We're both teeny entities trying to survive," said Laura Pryor, a former judge (similar to a commissioner) in Gilliam County, where the population is 1,690 and shrinking. "This is the only way we can survive.
"Why did everyone wait until it's almost done and we spent all that money?"
There's another twist: The Corps of Engineers sold the land for the dock to the Port in 1967 as work on John Day Dam wound down. The corps specified then that part of the site be used as a public port, said Tim Weatherell, chairman of the Port commission.
Corps officials acknowledge "communications breakdowns" allowed one branch to authorize the dock in 2007, although another branch knew of Native American concerns.
"Two pieces of the organization were not speaking very well to each other," corps spokesman Scott Clemans said.
He said the corps will inform the Port how to submit a claim to the government for reimbursement. The corps and tribes also say they will work with the Port to identify an alternative dock site and help the Port hang onto its state lottery funding.
But county and Port officials say they've already looked. The Port considered building the dock on the river at the city of Arlington, but local residents worried about truck traffic carting garbage from the dock to the dump. Also, wildlife agencies discouraged the site because it would have required putting fill in the river.
Two other places outside Arlington lacked enough space to stack cargo, so the Port settled on Willow Creek, about nine miles east of town. It's a ways from the large Columbia Ridge Landfill south of Arlington, Port commissioner Weatherell said, but it was the best available.
The landfill stands as a keystone of the local economy. It generates more than $3 million for Gilliam County every year -- more than the county collects in property taxes. But other landfills in eastern Oregon and Washington compete for the valuable stream of urban garbage.
Trash from Portland and Seattle now arrives by truck and train, but there is increasing interest in barging, officials said. If Gilliam County lacks a dock, the trash might end up elsewhere.
"We have to work with what we've got," said Pryor, the former county official, "and we don't have very much."
Umatilla tribal members spotted the barge dock under construction in 2007 while driving to ceremonies to commemorate the inundation of Celilo Falls, a major tribal fishing site now beneath the waters of The Dalles Dam. Tribal leaders protested to the Corps of Engineers that Willow Creek fishing areas were reserved by treaty.
Under the 1855 treaty, the tribes received permanent rights at all "usual and accustomed stations" where they fished at the time.
"There's a whole value of perpetuating the culture and passing down those traditions in families that the tribe thinks provide cultural continuity," Quaempts, the tribal official, said.
Tribal member Robert Brigham said he tried to fish at the partly built dock, but his nets were swept into the pilings. Barges coming and going would make it even tougher to fish.
The corps in April agreed with the tribes that the dock was built in a "usual and accustomed" tribal fishing site protected by the treaty. It then revoked Arlington's dock permit.
Sen. Ron Wyden, D-Ore., has cited the episode as a lesson in why government agencies must be fully accountable to local communities. His aides said that extends to projects such as the controversial liquefied natural gas terminals proposed near the Oregon coast.
"You have to pay attention to the stakeholders and constituents," Wyden spokesman Tom Towslee said. "If you don't, this serves as a kind of cautionary tale of what can happen."
The Port of Arlington is appealing the revocation on several grounds, including:
An Indian Claims Commission decades ago settled the matter. The tribes claimed title to land near Willow Creek, but lost and later dropped the claim in exchange for payment from the government.
The pilings are not really in a treaty fishing area. At the time of the 1855 treaty, the tribes fished 295 feet away at the original junction of Willow Creek and the Columbia -- now submerged by water behind The Dalles Dam. The dock site was dry ground.
"At some point, someone has to explain how you can have an 1855 fishing site 300 feet from the edge of the river," said Paul Conable, the Port's attorney based in Portland.
If treaty rights are so flexible as to apply there, he said, they could apply all up and down the river.
"If what the conclusion really is, is that there simply can't be any barge traffic into Gilliam County, then that's just devastating to the county," he said.
The first step in the appeal will be a meeting in the next few months, he said.
A consultant for the Port suggested offsetting the impacts of the dock by improving fish habitat along the shore and adding interpretive displays, Quaempts said.
"But that doesn't really address the loss of the site," he said.
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